Pertti Kattelus v Wakep Pty Limited [1990] ACTSC 18; (1990) 100 FLR 291 (5 June 1990)

SUPREME COURT OF THE ACT

PERTTI KATTELUS v. WAKEP PTY LIMITED
S.C. No. 68 of 1988
Workmen's Compensation
[1990] ACTSC 18; (1990) 100 FLR 291

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Workmen's Compensation - Workmen's Compensation Act 1951 (A.C.T.) - Claim in respect of alleged injury arising out of or in course of employment - Whether evidence enough to establish injury and incapacity - Symptoms of injury vanishing - Whether risk of further injury if workman resumes work of same type enough to establish incapacity

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171

Thomson v Armstrong and Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 87 ALR 385

HEARING

CANBERRA
5:6:1990

Counsel for Appellant Mr R Crowe

Instructing Solicitors Mesdames Pamela Coward and

Associates (Mr B Hatch)

Counsel for Respondent Mr D Nock

Instructing Solicitors Messrs Macphillamy Cummins and
Gibson (Mr A Macarthur)

ORDER

1. The appeal be allowed.

2. The matter be remitted to the Magistrates Court for the entry of the appropriate award in accordance with these reasons.

3. The respondent pay the appellant's costs of the appeal and of the proceedings in the court below, the learned Magistrate to decide the appropriate scale in respect of the proceedings before him.

DECISION

This is an appeal from a decision of Magistrate Ward sitting as arbitrator pursuant to the provisions of the Workmen's Compensation Ordinance (as it then was) 1951. The appellant, then applicant, had filed an application for arbitration claiming compensation from the respondent.

2. By his application he alleged that during the period July 1984 to December 1984 he sustained personal injury arising out of and in the course of his employment by the respondent. Alternatively, he claimed that during that period he suffered aggravation of a disease due to the nature of his employment. He acknowledged receipt of compensation for the period from December 1984 to 13 August 1985. At the beginning of the hearing before the learned Magistrate, two amendments to the application were made but they related to matters with which I need not be further concerned.

3. The appellant gave evidence before the learned Magistrate through an interpreter. He said that from 3 August 1984 he was working for the respondent using a heavy jackhammer to break concrete both on floors and walls. He worked variously, he said, for as little as one hour a day up to a full day at a time on the jackhammer for a period of at least five to six weeks. While using the jackhammer in a way which he indicated to the learned Magistrate he said that he felt pain on the left side of the back very slightly to the left of the midpoint at the belt line. Asked when he first felt pain in that spot he said, through the interpreter,

"I have done work a fair bit, and then that pain
started to feel."

4. By this I understood him to have meant that he worked for a fair bit and then started to feel pain at the place indicated.

5. He said that he kept on working until December 1984. He said,

"I was one day at home. I try to do and try to
work again, but I could not stay. Then I went to
see doctor."

6. The doctor whom he consulted was Dr Philip, a general practitioner. He said that he had not worked since except for about one week about a year later. Dr Philip referred him to Dr Coyle, an orthopaedic surgeon, and he subsequently saw Dr Morris, another orthopaedic surgeon and Dr Danta, a neurologist.

7. He described the work which he did about a year later for about a week as "stripping down formwork on a roof". That involved his taking down the timber supports for concrete and carrying them to heaps where the timber was kept. He said he started to feel so sore and sick and painful where he had previously felt pain. He gave evidence of his earlier work history. He was then asked had he had any pain in his back before working for the respondent in 1984. He replied, as I understand the transcript of his evidence, that he had previously had pain in his back in a somewhat different area as a result of what he described as infections. He said that he had not lost work on that account.

8. By its answer the respondent denied the appellant's claim. During the course of the hearing, however, it admitted that the respondent was at the relevant time the appellant's employer.

9. By a claim made on 18 December 1984 the appellant alleged that the injury occurred when he was scabbling (sic) (he must surely have meant "scrabbling") walls and rebates. He said that he felt lower back pain, that the part affected was perfectly normal before the accident and that the disability from which he was suffering at the time of the claim form was solely and totally attributable to the accident.

10. Dr Philip, reporting on 16 April 1986, said that the appellant first consulted him on 18 December 1984, stating that he had been using a jackhammer the day before when he developed a pain in his back and then developed marked muscle spasm pain in the back radiating into his left leg. Dr Philip prescribed a muscle relaxant and analgesics and referred him for an x-ray of his lumbo-sacral area. The x-ray report stated:

"Bone density appears reduced for his age, No
focal destructive lesion seen, but metabolic Bone
disease should be considered, multiple myelomas
should be excluded, Alignment is normal as are
the Sacro - Iliac joints."

11. Blood tests excluded metabolic diseases. On 7 January 1985, Dr Philip referred the appellant to Dr Coyle as his symptoms were worse.

12. Dr Coyle first saw him on 21 January 1985. Through an interpreter Mr Kattelus complained of left low back pain which had been present for the previous four to five months but which had gradually got worse. He had been put off his work as a builder's labourer about a month before Dr Coyle saw him but said that he had not improved much with the month's rest. The pain, he said, was present constantly in the left low back radiating intermittently to the left lower limb as far as the knee, was aggravated by sitting, bending and standing and relieved to a certain extent by lying prone. Mr Kattelus remembered no specific injury to his back but said that his work aggravated his symptoms and, in fact, he was unable to do his work because of those symptoms.

13. Dr Coyle said of him that the appellant was somewhat overweight but looked fit and gave, in Dr Coyle's belief, an unexaggerated account of a genuine organically based problem. His spine exhibited a left spastic scoliosis and its moving was asynchronous. Straight leg raising was somewhat restricted on the right side by back pain. Dr Coyle put Mr Kattelus off work for a further six weeks and prescribed physiotherapy. He expressed the opinion that the appellant should probably not return to his previous work as it would aggravate his back condition.

14. When he reviewed the appellant on 7 March 1985, Dr Coyle thought he did not appear to have improved much. Although he did not think him disabled enough to warrant surgical intervention, he certainly believed that he was unfit to return to his very heavy work. He advised the appellant to look for further work and to claim workers compensation as, although there was no specific injury remembered, he had no doubt that the appellant's heavy work was a significant contributing factor to his problem.

15. On 23 January 1986 the appellant told Dr Coyle that his situation was virtually unchanged, that he had tried to work on several occasions but had not managed it and that following those attempts he had quite severe pain interfering with sleep. On the other hand, if he did no work, he had very little trouble and could shop and potter around the house and sleep without trouble.

16. Dr Coyle thought that in the circumstances he felt that he had nothing to offer except to advise him that his previous work was unsuitable. He said that he asked the appellant about previous back pain to be told that he had had one episode about ten years earlier but had recovered completely and had had no trouble in the intervening period until 1984.

17. Dr Coyle examined the appellant further on 9 June 1987. In giving his further history the appellant told him that his back remained much the same as when he had last seen Dr Coyle about 18 months before although, if anything, the ache had increased. His specific complaints on questioning were of central and left-sided low back pain which radiated to the posterior aspects of both thighs on occasions. Dr Coyle noted that this distribution was somewhat different from that which the appellant had described when he had last seen him. The appellant said that his back pain was present constantly but aggravated by activity. He apparently had little night pain to interfere with his sleep. Since Dr Coyle had last seen him he said that he had not attempted to work and was receiving a pension.

18. On examination Dr Coyle found the signs of a lumbar spinal problem to be less marked than before. The spine was straight and moved reasonably freely without evidence of convincing muscle spasm. Straight leg raising remained somewhat limited on the left side causing left low back pain but right straight leg raising was then undiminished. He could detect no neurological deficit in the lower limbs. Both the 1984 x-rays and those taken on 9 June 1987 showed only minor degenerative changes consistent with the appellant's age and occupation. Dr Coyle concluded by saying that the organic lumbar spinal pathology was less convincing when he examined the appellant on 9 June 1987 but he had been impressed by him when he had assessed him previously and had always believed that he had a genuine organically based problem. Dr Coyle concluded his report of 10 June 1987 by saying,

"I tend to believe therefore that his disability
remains significant and that he himself therefore
remains unfit to return to his previous work as a
builders' labourer. He should be able to manage
light manual or sedentary work if such could be
found for him.

19. The situation is now stable and static I believe."

20. Dr Morris saw the appellant on 8 September 1987. Again he gave his history through an interpreter. He told Dr Morris that in 1982 he had complained of some mild low back pain after being required to carry a lot of cement bags. He had had x-rays taken at that time and the back pain seemed to settle with conservative management. Dr Morris viewed both the 1982 and 1984 x-rays and found them essentialaly the same, with normal vertebral alignment and disc height.

21. He gave the following opinion:-

"Overall, this man has, I feel, a mild disc
prolapse, probably at the L4-5 level which has
been present for many years and which I feel has
been aggravated by working a jackhammer. His
back condition is certainly mild at the present
time and I would not advise any form of surgery.
However, in view of his ongoing discomfort, he is
not, I feel, suitable to return to heavy work as
a builder's labourer or a jackhammer operator.
He would, however, be suitable for light work
that did not involve heavy lifting or excessive
bending and he would be suitable for a sedentary
occupation, although with his difficulty with
English this alternative would not be realistic
in the present climate.

22. As far as this man's prognosis is concerned, I feel his back pain will remain minimal as long as he does not engage in the very heavy work that he was previously doing."

23. Dr Danta, who saw the appellant on 7 July 1986, reported on that date setting out the appellant's history, habits and physical finding. He gave the following opinion:-

"The patient did not bring along any x-rays, but
you almost certainly have reports available to
you. The story sounds like mechanical backache.
There is no clinical evidence of any root
involvement. It is important to make sure that
there is no underlying predisposing condition,
such as spondylolisthesis with the long history
of pain that he has.

24. I think one has to attribute his backache to the cumulative effects of his labouring over very many years. One only has the subjective complaint of pain to go by in assessing his disability, and one has to accept on this basis that he is unable to pursue his work with the jackhammer. He himself volunteered that he could perform light duties.

25. The prognosis is poor since he has had the condition for such a long time and did not respond to conservative measures. He is likely to continue with backache indefinitely and will be unable to work in a job requiring heavy physical activity, particularly bending and lifting."

26. Dr Goldrick examined the appellant on behalf of the respondent. The appellant gave him a history that while using a jackhammer on 17 December 1984 he developed a sudden pain in the left lumbar region which had persisted despite treatment. The pain radiated down the lateral aspect of the left buttock and left leg as far as the knee and was aggravated by bending or lifting. There had been two episodes of pain in the back, the first about ten years before. The pain was intermittent, coming and going over a period of two to three years, but finally resolved spontaneously with no further trouble until November 1982 when he had low back pain for two or three days after carrying cement.

27. On examination Dr Goldrick found the appellant's spine to have normal movements and configuration without muscle wasting in the legs and with normal reflexes, motor power, superficial sensation and straight leg raising. The only abnormality he found was one tender area one centimetre in diameter in the left sacrospinalis at the level of the fifth lumbar vertebra and over an area of similar size in the abdominal muscles in the left iliac fossa. Dr Goldrick gave as his opinion that there was no bone or joint lesion and that the appellant's pain appeared to be due to an area of local muscle tenderness and to be made worse by his fear that there must be something terribly wrong with his back. He considered that the appellant's problems were very much a hazard of his occupation.

28. Dr Goldrick examined him again on 27 March 1987 (the previous examination had taken place on 6 September 1985). The appellant continued to complain of constant pain of variable degree which required the consumption of one to four or five Digesic tablets per day. He had been suffering the pain since he injured his back on 17 December 1984. He gave an identical history to that given on 6 September 1985 and on examination identical findings were made except that no abdominal tenderness was found.

29. Dr Goldrick concluded that the appellant had a trigger area over the left sacrospinalis muscle adjacent to the 5th lumbar vertebra with no evidence that he had significant bone or joint disease involving his lumbo-sacral spine. He thought that there was a large psychogenic element causing the appellant's complaint which was trivial in nature and in no way sufficient to prevent him from working.

30. Dr Corry, a consultant in rehabilitation medicine, who first saw the appellant on 23 May 1988, found on examination that his posture and gait appeared satisfactory, general examination was unremarkable and that he had a full range of movement in his lumbar spine. Straight leg raising was to 90 degrees on both sides. There were no neurological deficits in the lower limbs. He examined various x-rays that the appellant brought with him. These showed some minor degenerative changes with slight compression of the 5th lumbar vertebra. It was difficult to say whether that was traumatic. A CT scan of the lumbar spine dated 13 September 1985 showed some diffuse bulging at the L5/S1 level.

31. Dr Corry concluded:-

"Mr Kattelus suffers from chronic degenerative
lumbar spondylosis. He has symptoms of moderate
degree with relatively minor limitations of his
activity tolerances. Heavy work over many years
would have contributed to the development of this
disorder. There is no specific incident
described during the time that he was using the
jack hammer to which one could ascribe any acute
aggravation of this disorder.
He has had limited treatment to date and it may
be possible that his symptoms could be modified
with more aggressive treatment and back
strengthening exercises. He will also benefit
from instructions in safe working practices and
lifting and handling techniques. He will be
permanently restricted in his ability to lift and
handle heavy objects and his lifting tolerance is
probably maximum about 10 kg. but difficult to
assess from his described activities. This could
be more accurately assessed as part of a work
preparation programme.
On his described limitations, it would appear
that he would be fit for a range of unskilled or
semi-skilled jobs. His limited abilities with
English language is a restriction for him and I
note that he has recently started English
language training course at the TAFE College,
which would be of assistance."

32. All the doctors from whose reports I have quoted, with the exception of Dr Corry, gave evidence. Dr Coyle perused a CT scan of the appellant's lumbo-sacral spine which had been reported upon by Dr R Allen, a radiologist, in the following terms:-

"ThHe spine was scanned from L3 to S1.
At L3/4 there is a mild diffuse disc bulge
associated with marginal anterior osteophytes.
There is no evidence of significant neural
compression.
At L4/5 the disc is a little narrowed and there
is a very mild posterior disc bulge. Once again
there is no evidence of neural compression.
At L5/S1 there is a mild posterior disc bulge
associated with a small posterior S1 osteophyte.
There are some degenerative changes in the
posterior joints at this level."

33. Dr Coyle said that he would not argue with Dr Allen's report. He thought the scans were not very helpful. They were not completely normal nor completely abnormal. There were changes consistent with there being back pain but he thought that a lot of people without back pain would have changes like that as well. He thought that they showed degenerative changes which were, however, inconclusive as to the cause of the pain or as to the level of pain which the appellant might have. He was asked about disc protrusions. He said that he would not describe them as disc protrusions but rather as mild diffuse disc bulges, not normal but consistent with general wear and tear which probably happens to everybody. In examination in chief, he adhered to the conclusion he had reached in his report of 10 June 1987, a conclusion which I have set out above.

34. In cross-examination he was asked to assume that about 10 years before the incident in December 1984 the appellant had had back trouble with intermittent pain over a period of two or three years from which he had recovered completely. He was further asked to assume that about two years before the December 1984 incident the appellant had suffered back pain for two or three days from which he had also recovered completely. The doctor said that he did not think too much notice could be taken of those pains because he thought that heavy manual workers were entitled to back pain intermittently.

35. He was then asked to assume that the appellant had demonstrated a capacity to flex his back without any difficulty and when asked to perform flexion was able to stand with his legs straight and bend to better than 90 degrees without feeling pain. He agreed that that would be an indication that if there had been any aggravation of any pre-existing condition, he was over it and back to his normal condition. He was further asked to assume that the appellant had been observed on film bending and moving about normally, able to use his spine and bend rapidly and agreed that that too would indicate that the aggravation of any degenerative changes had ceased. He was shown some photographs, Exhibit 8, stills of moving film taken on 9 July 1987, and agreed that at that date the appellant did not appear to be doing too badly. He further agreed that men of the appellant's age, then 44, going back into heavy builder's labouring work after two or three years off, would be at risk in the normal course of events and that it was not the sort of work that he would recommend for middle aged men who had been off work for a long time. Finally, he agreed that provided the appellant exercised the normal care that all should take of their spines, there was a wide range of activity open to him consistent with his age. Later, in re-examination, he said,

"I do not, you know, I really do not know that I
can say, that I can say whether he is going to
get back pain if he works for six hours a day
lifting heavy weights."
He then said,
"I am just saying that I cannot help you any
more, I do not think. I do not think a doctor
can help you any more, that is what I am saying.
I am not saying that you have got to accept him.
I mean, you are already doing it, you have
obviously had him observed to see whether he can
work around the house and do heavy work. I do
not think there is any test I could offer or
suggest to say that he could or could not work."

36. Dr Morris was questioned about the acute muscle spasm and spastic scoliosis which Dr Coyle had observed in January 1985. He said,

"That would certainly indicate that there is a
fairly acute episode that has gone on, to have
muscle spasm producing a scoliosis which, with
time passed off, indicates that it has happened
at a certain time. It is not as if it is a
developmental problem and certainly there is
nothing structurally wrong with the spine because
of this sort of scoliosis, if it is corrected, as
it has now. So it indicates there has been some
acute episode at that time. But it was
difficult, when I saw him several years after the
event, he certainly did not have it then."

He was then asked to accept that the appellant had aggravated a disc prolapse in 1984 and was asked whether that aggravation had continued or had resolved itself. He replied that it had resolved itself insofar as he did not think that the appellant had a lot of discomfort at the present time but that whereas before the jackhammer incident he could theoretically jackhammer, he thought that the appellant was now at a stage where, if he tried, he would have back pain a lot sooner. He agreed that the CT scan showed nothing to indicate that there had been any damage to the spine created by any particular incident. He was asked whether he was relying solely upon the histories given by the appellant and of his complaints of the pain and the way it had occurred. He replied,

"Not entirely. Certainly, as far as I am
concerned, yes. But as you brought into the
thing with Dr Coyle's examination, that was
different."

37. He was asked whether examining him "cold" he would place any restrictions upon the appellant's working capacity. He said that he would not on his objective findings. He also agreed that there would be restrictions placed upon the appellant in respect of the heaviest forms of builder's labouring work because of his age in any event. He too, was shown the stills of the film taken on 9 July 1987 and agreed that they confirmed his examination and that if he were looking at what the appellant was seen there to be doing, he would not put any restriction on the type of work he would do apart from restrictions due to his age.

38. Dr Danta considered that, having regard to the history which he had obtained and the evidence of the acute back injury shown by the signs described by Dr Coyle, the appellant would not be able to do heavy work. He thought the injury was almost certainly an acute disc lesion occurring when the appellant was in a bent position holding a weight. He said that, accepting Dr Coyle's findings, one would say that the appellant probably had an acute disc lesion (sc. in December 1984). He also said that he had recovered from it. He was then asked,

"And at about in the forties or early fifties you
would expect, if they continued labouring work,
that they would get a painful back from time to
time?"
He replied,
"Well, that is very common and that is the
history that he gave over a long period of
years."

39. The general tenor of Dr Danta's evidence was that Dr Coyle's finding of scoliosis and muscle spasm in January 1985 indicated an acute disc lesion, that such a lesion, once it has happened, always leaves the disc in an abnormal state so that, with much less provocation, it is liable to cause further symptoms. He agreed that none of the bulges shown on the CT scan could necessarily be attributed to the December 1984 incident. He said that he was going only by the historical evidence, that described by Dr Coyle.

40. Dr Goldrick, giving evidence, confirmed that when he saw the appellant in 1985 he thought that he was fit for work and that he had an area of muscular tenderness in his back which was not related to any bone or joint abnormality as far as he could ascertain and which he thought accounted for the pain from which the appellant was suffering. He had found no evidence of disc protrusion on the two examinations which he had conducted on the appellant. His back movements were full and there were no neurological abnormalities and no areas of tenderness. Neither was there any radiological evidence of a previous disc protrusion. The changes on the CT scans were consistent with degenerative changes related to age. Questioned about Dr Coyle's objective findings in January 1985 he said,

"I accept the fact that Mr Kattelus has had
trouble with his back."

41. He was not surprised to find that the appellant had had some muscle pain given the type of work he had been doing over the four or five months before December 1984. He was then asked a number of questions which, with their answers, I set out in full:-

"And you tell him to go back to work and he goes
back to work and cannot handle that. And you
find, I think, as I understand your reports, some
psychogenic element, do you not?---I will just
refer to them if I may.
It is in your report dated 3 April 1987, the
sixth last line in the last paragraph?---That is
correct.
What do you mean by, "a large psychogenic
element"?---Very well. This man has no evidence
of bone or joint disease in his back. He has a
sore muscle which he has had on and off for a
long time to varying degrees. He is concerned
because he has the pain and this is a very common
problem, as you know, in people who do not speak
English well which, in fact, is why I spent some
time talking to him after his original
examination. He has a pain. It is a real pain.
It is not an imagined pain. It is very much
related to the type of work that he does; it is
heavy work. The point that I have made is that
it is made worse by the fact that it is there and
he worries about it even though the fact (is)
that there is not any major demonstrable disease
underlying it. That is the whole point of my
argument.

(I assume that Dr Goldrick either said or meant to use the word "is" where indicated.)

And you do not have any problems with this man
accepting that his worry is genuine even if not
objectively based, in your opinion, due to the
work experience he had that caused his back
injury during the period that we are talking
about?---I think Mr Kattelus is genuine. The
matter relates to what the basic problem is.
Right, his disability or the disability that he
feels that he has is a genuine belief?---Yes.
And that belief has come about by the fact, first
of all, that he injured himself during the four
to five months with this jackhammering with the
objective signs that Dr Coyle has found, do you
agree with that?---At that time.
And what has happened to him since, whether it be
related to objective matters or not?---The
symptoms at the time that I examined Mr Kattelus
on each occasion were out of all proportion to
any evidence of demonstrable disease.
And that is the functional element or the
psychogenic element?---It is.
But that functional element or psychogenic
element is directly related to the injury that
occurred up to when he went off in December? The
cause of his functionalism is the back injury
that he occurred up to December '84, is not
it?---I think it is more complicated than that.
I mean, the fact very much is that the man does
not speak English well and cannot understand the
distinction between the various problems.
HIS WORSHIP Well, can we put it this way, is
there a link at all between his present condition
and that injury?---Yes, there is a connection.
The question is how much has it been amplified.
MR PURNELL That connection is a causal
connection?"

42. At this point, Counsel for the respondent objected on the ground that the only injury particularised had been a disc injury with no psychiatric element involved. After argument, the learned Magistrate allowed an amendment to allege that, "in addition to or in the alternative the applicant suffers from a disabling psychogenic element or functional disability related to the said aggravation".

43. The matter was thereafter abruptly adjourned.

44. What subsequently occurred is described in the words of Counsel for the respondent when the matter came before me. He said:-

"There was medical evidence for 4 December. It
was in one of those running list situations and
there was then a further hearing of the matter
the date of which was 7 October 1988 and we have
no transcript of the proceedings on that day.
The only notes that I have in respect of it are
that Mr Purnell (then Counsel for the appellant)
did not pursue, or did not call any evidence of a
functional nature and two medical reports were
tendered by Dr Corry and Dr Revai, a consultant
psychiatric specialist from Sydney. Those
reports were tendered by consent.
I have no notes of anything other than we were
ordered to prepare written submissions and given
some time to prepare it...Mr Purnell drafted some
written submissions, none of which raised the
question of the Barbaro point. And in fact the
Barbaro point was never mentioned again after
that first day...I never put (my submissions) in
because the magistrate handed down his judgment
before I got a chance to do it (on 14 October).

45. I have already referred to Dr Corry's report. Dr Revai, who examined the appellant on behalf of the respondent, described the appellant as a relaxed, pleasant, overweight man who looked his stated age and claimed not to speak one word of English. He said that there was no evidence of any schizophrenic, paranoid or obsessional thinking and no outward signs of anxiety or depression. He struck Dr Revai as being very passive towards his rehabilitation regarding his low back. Dr Revai summarised the situation as he saw it as follows:-

"...Mr Pertti Kattelus is a forty four year old
Finnish migrant, who claims to have had low back
pain for the last five to six years, which became
worse in December 1984. After that time he
stopped work except for trying to work for a
further six days at the commencement of last
year. He has not had any treatment, does not
appear to have lost any weight and he has been
quite content to just do nothing. He now claims
to have developed extra symptoms in his throat,
chest and arms for which I suggest he be
assessesd by your consultant physcian (sic).
From the psychiatric point of view, I could not
satisfy myself that he is disabled by any
psychiatric disorder."

Dr Revai's report was dated 1 March 1988.

46. The learned Magistrate delivered his Reasons for Decision on 14 October 1988. He said:-

"The applicant claims that he injured his back in
December 1984. With the exception of five days
in early 1986, he has not worked since. Many
doctors gave evidence, and many medical reports
were tendered. The applicant himself gave
evidence.
There is little objective evidence to support the
claim that the applicant has such a bad back as
to totally and permanently incapacitate him. I
say "permanently" because he has now been off
work for some four years. He is now studying
English, but has only done so since the evidence
to support his claim of inability to work due to
his injury has run into difficulties.
Photographs and demonstrations in court show the
applicant is able to bend his back at the waist
more than 90 degrees with legs straight and
without any apparent difficulty. I am satisfied
that there is not, nor has there been, any
significant compensable injury to his back as
alleged. He may well have hysteria or neurosis,
or believe he has a bad back, or bad other parts,
but if he does, I am not satisfied they relate in
any way to his work with the respondent."

47. His Worship then listed a variety of complaints which the appellant had made and went on:-

"It is of some significance that he has admitted
to back pain prior to the alleged injury.
The doctors who gave evidence for the applicant
seemed in evidence to alter their hypotheses that
his current inability to work was solely
attributable to injury sustained whilst working
for the respondent. For example, Dr Philip, in
examination in chief, said the applicant was
unable to do anything involving bending or
lifting. After examining the films of the
applicant, he seemed to shift his ground
somewhat, and conceded that, on the evidence of
the photos, he would have to admit to the
possibility of some exaggeration by the
applicant. He agreed that, on examination by
himself, the applicant never demonstrated the
degree of flexibility of his spine that he did in
the photos.
Even Dr Coyle, who was initially so enthusiastic
about this litigation seemed to dampen his
enthusiasm even before he got into court."

48. His Worship then referred to Dr Philip's report of 16 April 1986 and to the comment made therein concerning Dr Coyle's favourable attitude to the appellant. Next he referred to Dr Coyle's reports of 26 March 1986 and 10 June 1987 and to his assent to the proposition that, if the applicant could bend his back more than 90 degrees with his legs straight, he had got over any injury he might have sustained in December 1984 and his statement, when shown the photos in Exhibit 8, that the appellant didn't seem to be too bad.

49. The learned Magistrate went on to say that Dr Morris in his evidence had said that there were no objective signs of damage to the appellant's spine, that he had an excellent range of movements and he would place no restrictions on the work he could do. He further said that Dr Danta, after seeing film of the applicant, had said there was nothing at all wrong with his back.

50. His Worship concluded by saying:-

"I am satisfied that his present inability to
work, if any, and indeed, his inability, if any,
to work since 1984, has nothing to do with any
injury sustained whilst he was working for the
respondent."

51. The Notice of Appeal sets out the Magistrate's findings as follows:-

"1.The (appellant) did not suffer any
significant compensable injury to his back
in December 1984.
2. There is little objective evidence to
support the claim that the applicant has
such a bad back as to totally and
permanently incapacite him.
3. There is not, nor has there been, any
significant compensable injury to his back
as alleged."

52. The grounds of appeal are:-

"1.That there was no evidence upon which the
Magistrate could have found that there was
no compensable injury.
2. The whole of the Magistrate's findings in
respect of:
(i)incapacity;
(ii) the cause of any incapacity;
were (sic) not supported by the evidence or
alternatively the weight of the evidence.
3. That there was no evidence upon which the
Magistrate could have found that since
December 1984 the applicant had not been
totally or partically incapacitated:
(i)for the entire period since December
1984;
(ii) for any part of the period since
December 1984.
4. That the Magistrate erred in law in failing
to make findings in respect of the issues
raised for arbitration."

53. I think that the Magistrate erred in finding that there was no significant compensable injury to the appellant's back in December 1984 as effectively he did although a finding to that effect is not set out in so many words and in finding that there was not, nor had there ever been, any significant compensable injury to his back as alleged. I rather think that when he said that there was no significant compensable injury to the appellant's back he meant that there was no significant continuing disability.

54. It seems to me that there is a substantial amount of objective evidence that the appellant suffered an injury at work when employed by the respondent and therefore sustained an injury arising out of or in the course of his employment. Dr Philip noted on 18 December 1984 marked muscle spasm. Muscle spasm is, according to the medical evidence, an objective sign that something has happened to cause the muscle to go into spasm. Pain in the lower back radiating into the left leg would probably be sciatic pain although obviously a report of pain there is a report of a symptom only, a subjective thing.

55. Dr Coyle, when he first saw the appellant on 21 January 1985, found him to have a left spastic scoliosis of the spine with asynchronous movement. Dr Coyle said that the findings he made on the first examination were objective findings which he did not believe could be simulated.

56. While it is undoubtedly the case that none of the doctors who examined the appellant after 1 September 1985 found present any objective signs of disability in the appellant's lumbar spine region, several of the doctors expressed the opinion that he should not return to the work in which he was engaged before 18 December 1984.

57. Dr Coyle said that it was his belief that the appellant had an organic problem with his spine which was giving him trouble at one time and that if he believed he had back pain which was aggravated by heavy work he would recommend that he did not go back to heavy work.

58. Dr Morris, another orthopaedic surgeon, said that the observations of Dr Coyle of the spastic scoliosis indicated that there was a fairly acute episode which had gone on and was not a developmental problem. He thought that if the appellant went back to work of the kind he had been doing before 18 December 1984, he would aggravate any disc prolapse which might have been present. He said that whereas before the pre-jackhammering incident he could, theoretically, jackhammer, now he thought that the appellant was at a stage where, if he tried it, he would have back pain a lot sooner. The jackhammering put him into a different category. He then said,

"Well, I think, if one accepts that he has had an
acute episode, and as Dr Coyle has described and
I agree, that he has had an acute disc prolapse
at that stage, then the disc, instead of being in
its normal configuration, even with a small
bulge, at some stage has ballooned or progressed
beyond its normal confines. And then over a
period of time it has perhaps gone back to its
normal situation. But that disc prolapse area, I
believe, is more vulnerable then to a further
injury, having been stretched or expanded or
whatever you like, at that level."

59. He agreed that when he examined him, his objective finding was such that he would not place any restriction at all upon the work which the appellant was able to do.

60. Dr Danta, asked whether the appellant was able to do heavy work said,

"Well, if he had an acute injury which is almost
certainly an acute disc lesion in the bent
position whilst holding a weight, one would
advise him not to carry on similar activity...he
can do moderate work, but I think one should
restrict him from bending and lifting, in
particular."

He said that accepting Dr Coyle's findings, one would say that he probably had an acute disc lesion but that he had recovered. He was asked in cross-examination,

"But to say at the moment that there is any
damage to the spine created by the disc lesion,
that is not so?"
He replied,
"Well, once a disc becomes disrupted, it is never
normal."

61. He agreed that the restriction he had indicated as to the work which the appellant might do was more a precautionary restriction based upon the historical facts that he knew. He replied,

"The historical facts and the experience with
other patients with chronic backache."

He later said,

"...once a disc becomes disrupted it is never
normal and then lesser trauma can often produce
another acute episode."

He was then asked,

"And you would not regard it then as proper
advice to advise him to go back into heavy work?"

He replied,

"Well, all I would advise him against is heavy
lifting and bending."

62. He repeated his view that once a disc is disrupted it is never normal and is often, with much less provocation, liable to cause further symptoms.

63. I refer again to the evidence given by Dr Goldrick and in particular to the lengthy passage from that evidence which I have earlier quoted.

64. I do not think it was fairly open to the learned Magistrate to conclude that the appellant had suffered no compensable injury. Two doctors gave evidence of having seen muscular spasm shortly after the appellant ceased work in December 1984 and the learned Magistrate did not indicate that he disbelieved either of the doctors. This Court is in as good a position as was the Magistrate to draw inferences from that evidence. Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 and Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193.

65. Dr Goldrick thought that the appellant was genuine. He did not, however, agree that there was evidence of a disc prolapse. He took the view that, on the basis of a CAT scan which he ordered originally in September 1985, there was no evidence that there had been a previous disc protrusion. I understand a disc protrusion in the context to be equivalent to a disc prolapse. Dr Goldrick found, of course, no neurological abnormalities, that backward movements were full, that there were no areas of tenderness and that functionally the appellant was in excellent shape. That evidence does not, as it seems to me, differ from the evidence of the other doctors who examined the appellant sometime after the incident or incidents which led to his ceasing work in December 1984. But Dr Goldrick did say that the appellant had had a low back strain on 17 December 1984 and several episodes on previous occasions. These, he thought, were very much a hazard of his occupation. I take that to mean that he agreed that the disability from which he suffered following the incident of 17 December 1984 was due to his work or, to use the ordinary terminology, arose out of or in the course of his employment.

66. In the end I do not see much difference between the opinions expressed by the medical practitioners. If the condition which Dr Goldrick described as low back strain on 17 December 1984 was with similar episodes what Dr Goldrick described as very much a hazard of the appellant's occupation and if Dr Morris and Dr Danta described the condition as a disc prolapse which leaves the appellant's spine subject to weakness at that point so that the injury is likely to occur, it seems to me that there is in all very little difference in the result even though the doctors may differ as to the cause of the condition. In either event, there is a risk of recurrence of the injury. The question which I face at this stage is whether the undisputed evidence before the learned Magistrate is sufficient for it to be said that the appellant is, because of the condition from which he suffered following the incident on 17 December 1984, cumulatively upon the earlier incidents over the previous five months, and, indeed the episodes some years before, in a position where he is unable, because of the risk of recurrence of the injury, to continue the work which he was doing.

67. It seems to me that although Dr Goldrick said that he was fit for work when he first saw him, he acknowledged in his report of 16 September 1985 that back strain of the kind of which the appellant complained was a hazard of his occupation. In those circumstances, it seems to me that the evidence is really all one way and that if the appellant were to return to the work which he was formerly doing he would be at risk of further injury to his spine due to the nature of his work.

68. The next question is whether in those circumstances the appellant may be held incapacitated.

69. Incapacity for work is reduced physical capacity because of physical disability for actually doing the work in the labour market in which an employee was working or might be reasonably expected to work. Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171 at p 181 per Mason J (as he then was) Wilson, Deane and Dawson JJ. Incapacity is not a physical fact but is the reduced ability because of physical deficiency to sell work for wages. Thomson v Armstrong and Royse Pty Ltd [1950] HCA 46; (1950) 81 CLR 585 per Kitto J at p 621.

70. As to the appellant's incapacity, it seems to me that he is in much the same position as was the appellant in Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 87 ALR 385. In that case Toohey J, giving the judgment of the High Court said at p 390 of a disease from which the appellant in that case suffered,

"But, in that form, is the disease due to the
nature of the appellant's employment with the
respondent and is the appellant thereby
incapacitated for work? The answer to each of
those questions is "yes", for the (following)
reasons:-
"If -
(a) a workman has a chronic, non-incapacitating
pre-existing disease;
(b) the nature of his employment causes for the
first time a temporary incapacitating
aggravation of the disease;
(c) the aggravation ceases when the workman
stops work;
(d) the aggravation is renewed when he again
starts work in the same employment; and
(e) the pre-existing disease rendered more
recalcitrant by episodes of aggravation now
prevents the workman from working in a
large range of occupations because such
work will cause a similar aggravation
it seems...that the nature of the employment has
aggravated the pre-existing disease to the point
where it is incapacitating."

71. It is true that in the present case the words "for the first time" are not appropriate because there were previous episodes of back pain but I think that it is not absolutely necessary for a workman in the plaintiff's position to have suffered incapacity for the first time whether by aggravation by injury of a pre-existing condition or aggravation of a pre-existing disease. The question is whether the workman is now prevented or incapacitated from working because of the risk of recurrence of the injury aggravating the disease.

72. The evidence establishes sufficiently, I think, that the appellant is now incapacitated from working at the occupation in which he previously engaged, that is, heavy work involving bending and lifting. He is now aged almost 47. The evidence is that it is inappropriate that a man of that age should again commence heavy labouring work after a long period of absence from it. The appellant speaks very little, if any, English and there was no evidence that he is fitted for any work other than that of the heaviest labouring jobs. I think the cause of his incapacity was the accident although his advancing years may well have contributed to that incapacity.

73. In the circumstances, the appeal must be allowed and the matter remitted to the learned Magistrate for the entry of the appropriate award in accordance with these reasons.

74. The respondent should pay the appellant's costs of the appeal and of the proceedings below, the learned Magistrate deciding the appropriate scale in respect of the proceedings before him.